Friday, 30 June 2017

Obtaining registration of US surrogacy orders is transformative for Australian intended parents and their children

This morning (Australian time) I took part in a webinar about surrogacy developments in Australia, Canada and the UK. My co-presenters were international surrogacy lawyers Sara Cohen from Canada and Colin Rogerson from the UK.

I discussed the impact of two recent Family Court cases on those Australian citizens or residents thinking of doing surrogacy in the US. Here is my paper:



 







AMERICAN BAR ASSOCIATION
FAMILY LAW SECTION WEBINAR

29 JUNE 2017

COMMONWEALTH BABIES: INTERNATIONAL ART UPDATE ACROSS BORDERS

TWO DEVELOPMENTS FROM DOWN UNDER



By Stephen Page[1]
Partner Harrington Family Lawyers







INTRODUCTION

After having undertaken surrogacy in the US or Canada, there have been two issues for Australian intended parents, aside from how to obtain citizenship:
·         Do they take other steps to have their parent/child relationship recognised at law?
·         How do they obtain an Australian passport for their child?

A RECAP ON AUSTRALIAN CITIZENSHIP

An application for Australian citizenship may be made in Australia or in the United States or Canada.  For most intended parents, the best course is to obtain recognition of parentage (preferably by Court order) the US or Canadian passport and travel visas so that the child can travel to Australia – and then after having arrived in Australia, make the application for citizenship. 
The relevant statute is the Australian Citizenship Act 2007 (Cth).  It provides under section 16 that if a person is born outside Australia on or after Australia Day 1949, that person is eligible to become an Australian citizen if a parent of the person was an Australian citizen at the time of the birth – and then an application may be made to the Minister for Immigration to establish citizenship. 
There is also a requirement that the Minister must be satisfied of the identity of the person before granting citizenship: s.17(3).  This became relevant in a case last year when a heterosexual couple, undertaking surrogacy overseas (not the US or Canada) told the Immigration Department that they had not undertaken surrogacy but that the wife had become pregnant through IVF, using the husband’s sperm and the egg of an egg donor.  The relevant official noted that the intended mother alleged that she must have flown when she was about 35 weeks pregnant with twins, but did not have any letter from a doctor clearing her for travel, in breach of the airline’s usual policies.
Whilst the official could be satisfied that the twins were genetically the children of the intended father, the official could not be satisfied about the identity of the children (because the mother was not identified) – and citizenship was refused.  The official was concerned that the children may have been trafficked. 
The problem with the Australian Citizenship Act, as courts have commented, is that the definition of who was a parent and who was the child is very poor.  Under section 8 of the Act, it would appear on face value that anyone undertaking surrogacy in the US or Canada (or anywhere else overseas) would never be recognised as the parent of the child.  Section 8 provides:
“(1)     This section applies if a child is:
(a)          a child of a person under section 60H or 60HB of the Family Law Act 1975; and
(b)          either:
(i)                 a child of the person’s spouse or de facto partner under that section; or
(ii)               a biological child of the person’s spouse or de facto partner.
(2)        The child is taken for the purposes of this Act:
(a)          To be the child of the person and the spouse or de facto partner; and
(b)          Not to be the child of anyone else.”
The effect of section 60H of the Family Law Act 1975 (Cth) is that when a woman gives birth to a child conceived through an artificial conception procedure and the woman either has a cohabiting partner or husband and her partner or husband consented to that procedure, as have the donors of any genetic material, then the woman and her husband are the parents and the donors are not.
On the face of it, on reading section 8 of the Australian Citizenship Act and section 60H of the Family Law Act, any Australian undertaking surrogacy overseas as an intended parent would not be a parent for the purposes of Australian citizenship.
Section 60HB of the Family Law Act has much more limited operation.  It provides that when a state parentage order is made, for example in Queensland or New South Wales, transferring parentage from the surrogate (and her partner if there is one) to the intended parent or parents, then the intended parent or parents are the parents for Australian law (and therefore by virtue of section 8 confer citizenship on their child). 
In two cases in the Family Court it was held:
·         That section 8 has been considered by the Department of Immigration and Border Protection[2] not to apply to international surrogacy arrangements;[3]

·         That Parliament never intended section 60H to apply to surrogacy arrangements and therefore it is not a provision that relates to international surrogacy arrangements[4].
Therefore to establish Australian citizenship for any child one looks at the broad test set by the Federal Court in H v. Minister of Immigration and Citizenship [2010][5] – so that who is seen in the wider sense of the community as being the parent?  Therefore, someone who has no genetic relationship with a child can be the parent of the child.  Only one intended parent needs to be an Australian citizen for the child to obtain Australian citizenship.  The effect of H v. Minister of Immigration and Citizenship is that there does not need to be a genetic link between the intended parent and the child.  The Department of Immigration has said, quite properly:
·         An application [for citizenship] requires additional scrutiny if one or more of the following circumstances apply:

o   The person stated to be the child’s mother travelled by air in what would have been a very advanced state of pregnancy (most airlines will not carry a passenger after the 28th week of pregnancy);

o   The person stated to be the child’s mother is of mature age and the birth certificate shows the child to be her first born;

o   The person stated to be the child’s mother claims to have had no prenatal attention from a doctor in Australia;

o   A person stated to be a parent is not contactable;

o   The person stated to be the child’s mother claimed she had no antenatal care;

o   An application is lodged by a responsible parent in Australia and the child is offshore;

o   The birth certificate was issued a significant time after the birth;

o   Travel movements of the person stated to be the parents indicate that they could not have been together at the time the child would have been conceived;

o   A child notionally eligible for citizenship applied for a visa before seeking citizenship or evidence of citizenship… and “in the absence of satisfactory evidence of biological parentage, any other evidence provider should be closely scrutinized and verified to the maximum practical extent.”[6]
It is common for Australian intended parents to undertake surrogacy in the US or Canada to be able to rely on the US or Canadian surrogacy order to establish parentage for the purposes of citizenship in Australia.  In those cases, typically a DNA test does not need to be undertaken.  Where there is no genetic link between the Australian intended parent and the child or children, it is possible, as I said, to obtain citizenship but it is something that ought to be planned from the beginning so that an Australian official who might be rightfully or otherwise suspicious of trafficking can be properly convinced that there has not been a child who has been trafficked but this is a legitimate application for citizenship. 
In jurisdictions where it is possible for a parentage to be recognised without a court order, for example Illinois or British Columbia, I strongly recommend (applying the KISS principle) that an order be obtained because it is simply easier to persuade Australian officials that the matter has had judicial oversight and that a judge has determined by order that the intended parents are the parents of the child as a matter of law, rather than having to traverse the tortuous track of the state of law in that relevant jurisdiction, e.g. Illinois or British Columbia.

THE REVOLUTION OF RE HALVARD [2016] FamCA 1051

When intended parents bring their babies back to Australia, it is unclear as a matter of law as to whether they are the parents.  There has as yet been no case before Australian courts where someone has sought a parentage declaration that they were the parents of the child when they undertook surrogacy in Canada or the United States.  The case law before Australian courts concerning who are parents through international surrogacy has typically involved countries where there hasn’t been judicial process at the conclusion in the foreign country, but the recognition has been by way of contract and these countries have been, with one exception, either India or Thailand, places where surrogacy abuses have been well known. 
There have been differing approaches taken by Family Court judges, which include:
·         A doubt whether the intended parents are parents under Australian law, either because of the effect of parenting presumptions in Australia or because what they did on the face of it was illegal[7];

·         The intended father was a parent under the Family Law Act and international jurisprudence[8];

·         The intended parents are unlikely to be parents, because State law, not Federal law applies and the parenting presumption would mean that the surrogate and their partner would be the parents[9];

·         In Victoria, rules about banning people from undertaking surrogacy for commercial surrogacy don’t apply and therefore an intended father would be recognised as an intended father under Federal legislation[10];

·         Overseas parenting presumptions don’t apply, and therefore the intended parents are not the parents in Western Australia[11];

·         Under Western Australian adoption law, who was a parent is determined by the reality of who undertakes the parenting[12];

·         In Victoria there is a gap in the law about international surrogacy and the court does not have the power to make a declaration about who is a parent.  The intended father begat the child and would therefore be the father but the intended mother where an egg donor was used is not the mother.[13]
The only case that did not involve India and Thailand, prior to Re Halvard, involved a South African man who underwent surrogacy there.  Two weeks before his children were due to be born, a South African judge made an order upholding the South African surrogacy agreement, which meant that the man, who was also genetically the father, was the parent of the children for all purposes under South African law.[14]
The case states the principle that if someone overseas lawfully there undertakes surrogacy there and is recognised as the parent there, then as a matter of comity they should be recognised as a parent under Australian law. 
It is no leap of faith therefore to say that if someone who is an intended parent comes from Australia and undertakes surrogacy in the US or Canada – and they do so lawfully in the US or Canada under Australian law – and have been recognised under US or Canadian law as the parents – then they should be recognised under Australian law as the parents.
A difficulty with this approach in part is that each of the Australian States and the Australian Capital Territory have differing rules about surrogacy (including international surrogacy) and what may have been done overseas may or may not be legal based under local law.  The devil is in the detail.  Planning of the surrogacy arrangement from the beginning is therefore vital.
OPTIONS FOR AUSTRALIAN INTENDED PARENTS TO BE RECOGNISED AS THE PARENTS
Aside from the issue of citizenship, Australian intended parents have had two choices in the past:
1.      Option 1 - apply to the Family Court for an order declaring that you are the parents as well as that you have parental responsibility for the child and the child lived with you.  This was first obtained as long ago as in 2003.[15]  However, the ability to obtain these orders or at least a declaration of parentage is now doubtful and comes at a cost with a ballpark figure of US$15,000 at today’s exchange rates, which doesn’t seem to make it much value for money – an uncertain outcome at a large cost. 

Therefore, very few people undertake this course. 

2.      Option 2 – do nothing.  Most intended parents as a result take no steps whatsoever to establish that they are the parents of their child. 
RE HALVARD [2016]
The intended parents lived in the United States.  One was an Australian citizen and one a US citizen.  They undertook surrogacy in Tennessee where a pre-birth order was made but the child would be recognised as theirs upon birth.
All went according to plan – the child was born and they were recognised as the parents.  They subsequently without difficulty obtained Australian citizenship for their child.
They subsequently applied to the Family Court of Australia to register their US surrogacy order in Australia.  It is possible to register overseas parenting orders with the Family Court of Australia[16], the effect of which would be that the Family Court of Australia would stand in the stead of the overseas court, resulting in the order being able to be enforced in Australia.
The difficulty before Re Halvard was that every time intended parents sought to register an overseas child order, a registrar rejected the application for a number of reasons.  Reasons that I have become aware of include:
·         An overseas pre-birth order involves the establishment of rights, not transfer of rights – in language that is reminiscent of Article 4 of the 1996 Hague Child Prevention Convention:

“The Convention does not apply to –
(a)   The establishment or contesting of a parent-child relationship”

·         A pre-birth order is not an overseas child order because at the time that the pre-birth order was made the child did not exist - as it had not been born.
·         A pre-birth order does not identify the child- for the obvious reason that the child had not been born when the order was made.
·         The Family Court of Australia can only register like-for-like orders.  As the Family Court of Australia cannot make surrogacy orders, therefore it cannot register overseas surrogacy orders.

·         The surrogacy arrangement had the whiff of commercial surrogacy about it.  The public policy of the relevant State was against commercial surrogacy, including overseas commercial surrogacy and therefore on public policy grounds, if consideration were given to registration, registration ought to be refused.

BEFORE APPLYING TO THE JUDGE

The parents had previously sought to register the order through the Commonwealth Attorney- General’s Department, which sent the documents to a registrar of the court.  The Registrar, despite regulations saying that the registrar shall register, declined to do so and gave reasons.  Instead of seeking review, the intended parents instead applied direct to the court to register the order. In applying to a judge, the judge’s discretion had to be applied- as the judge may register.

Step 1: Was the order an overseas child order?

The question that Justice Forrest stated was most apt in the case was:[17]
            “However expressed does [the Tennessee order] have the effect of determining the person or persons with whom a child who is under 18 is to live or as to which person or persons are to have custody of a child who is under 18?”
Forrest J said[18] that eight paragraphs of a preamble to the order “make it absolutely clear to which individual child the actual orders apply”, namely X.  The orders provided that Mr Halvard and Ms Fyodor were to be shown on the birth certificate and that they had all parental rights and responsibilities pertaining to the child, including the right to legal and physical custody of the child and a right to make health-care decisions for the child.
His Honour said[19] that he did “not consider the fact that the child was at about two months from birth at the time the Tennessee Court’s orders were made makes the orders any less an “overseas child order” within the meaning of that term, than if the orders had been made two months after his birth”.  His Honour noted that the form of order that was made in Tennessee was to the same effect as post birth orders made in either Queensland or New South Wales.

Step 2: A certified copy of order and certificate of currency

Each of these were complied with.

Step 3: Proceeding to Australia

The parties and child were not ordinarily resident in or present in Australia.  Forrest J concluded that they were proceeding to Australia – as that phrase meant coming to or travelling to Australia, whether that be for a visit or to live in Australia.  Mr Halvard’s evidence was that:
(1)          He was an Australian citizen;

(2)          He had years of being ordinarily resident in Australia prior to going to the US, to further his career and meeting and marrying an American citizen;

(3)          Members of his family still resided in Australia;

(4)          X was a dual US/Australian citizen;

(5)          They intended to visit Australia from time to time when X was a little older.
His Honour concluded that that was sufficient.

Step 4: Prescribed Overseas Jurisdiction

Justice Forrest determined that Tennessee was a prescribed overseas jurisdiction, being prescribed in Schedule 1A of the Family Law Regulations 1984 (Cth).  I note that:
·         Every US State and the District of Columbia is a prescribed overseas jurisdiction, other than Missouri, New Mexico and South Dakota.  I have been asked by a number of US colleagues about why they haven’t been included.  I simply don’t know.  I have sought to have them added – but they haven’t been added yet.  If surrogacy is to be proceeding through one of those States for Australians, then an order made in those States cannot be registered in Australia.

·         By contrast, no Canadian province is a prescribed overseas jurisdiction.  I have sought similarly to have Canada added, but had no luck so far.

Step 5: Exercise of discretion

Forrest J held that it was proper to register the order when:
1.      The Full Court of the Family Court had not listed any criteria for registration.

2.      Contrary to the views of the intended parents’ solicitor, the arrangement was not a commercial surrogacy arrangement within the meaning of the Surrogacy Act 2010 (Qld) or Surrogacy Act 2010 (NSW).  It was while generous, not commercial, and not a commercial arrangement masked as an altruistic one, and “whilst an overseas child order that came into existence as a consequence of a commercial surrogacy agreement might have difficulty attracting a favourable exercise of the discretion to register it in this Court for public policy reasons, I do not consider that applies in this matter”.[20]

3.      The Tennessee order was the same type as those made under the Surrogacy Act 2010 (Qld) and the Surrogacy Act 2010 (NSW).

4.      The fact that the order under Tennessee [or as seen in the 2013 case under South African] law could be made before the birth of the child but in Queensland and New South Wales can only be made after “is of little apparent consequence and is not, in my judgment, good reason for refusing to register the Tennessee Court’s order in this Court”.[21]

5.      Because the applicants were not seeking parenting orders, then the onerous requirements of Division 4.2.8 of the Family Law Rules (which require evidence from the surrogate, about the law overseas, and consideration of the appointment of an independent children’s lawyer [equivalent of a guardian ad litem] and the obtaining of a family report) were not applicable.  His Honour noted:
“The gestational carrier was a party to the proceedings in the Tennessee Court, along with both the applicant.  That Court, by its order and the preamble to its order, was clearly satisfied that the applicant should have all parental rights, responsibilities and obligations relating to the child then being carried by the gestational carrier transferred or conferred upon them.  The evidence put before that Court in support of that application clearly satisfied the Court that the order it made was the appropriate one to make.”[22]
6.      The applicants were the biological and, since the order of the Tennessee Court, the de jure parents of X.  He lived in their day to day care. 

7.      There was no reason why they should not be entitled to the registration of the Tennessee Court’s order in the Family Court so that their parent/child relationship of the child was recognised and recognised appropriately in Australia.

FURTHER EFFECT OF RE HALVARD
On its face, Re Halvard deals only with registration, but it has a likely flow-on effect to Australia’s surrogacy and egg donor laws. What is commercial surrogacy has to be revisited in some States as a result of the ruling. Many Australian intended parents who thought that they had committed offences under relevant State law in undertaking surrogacy may not have done so- and who thought there was no point doing anything in formalising their legal relationship with their child now can do so.
Under a scheme of both Commonwealth and State legislation it is an offence to pay an egg, sperm or embryo donor anything other than their reasonable expenses – an offence punishable by up to 15 years imprisonment.  In several States there are long arm laws which extend the jurisdiction. If the intended parents don’t structure it right and enter into an egg donor agreement in the United States, for example, where the egg donor is paid anything other than her reasonable expenses, then on the face of it they are committing an offence punishable by up to 15 years imprisonment.
If the agreement is structured correctly, then they can avoid the commission of that offence.
There has been no case on what are reasonable expenses.  One of the regulators of Australia’s IVF industry, the Reproductive Technology Accreditation Committee, decided in 2011 that the phrase of the legislation concerning donors of reasonable expenses was essentially the same as that under the Surrogacy Act 2010 (NSW) of reasonable costs.  Of course, the committee is not a court of law and clients are not IVF clinics – but nevertheless the reasoning seems right and it is a case of like for like.  It is therefore the case, in my view,  that if an amount is proposed to be paid to an egg donor in the United States for Australian intended parents and the amount can be seen to be reasonable, in line with the decision in Re Halvard, then no offence may be committed by the Australian intended parents.
The other regulator of Australia’s IVF industry, the National Health and Medical Research Council has set out in its 2017 licensing conditions[23] that what can be paid to donors is only out of pocket expenses.  This appears to be inconsistent with the decision in Re Halvard and therefore incorrect as a matter of law – but it shows the challenges of a new and uncertain area of law. 

PASSPORTS

Under the Australian Passports Act 2005 (Cth), the Minister for Foreign Affairs[24]:
            “…must not issue an Australian travel document to a child unless:
(a)   each person who has parental responsibility for the child consents to the child having an Australian travel document.”[25]
There are exceptions to allow for the dispensation in special circumstances of the consent and for an order of an Australian court permitting the child to have an Australian travel document, the child to travel internationally or the child to live or spend time with another person who is outside Australia. 
What is parental responsibility is not defined under the Australian Passports Act 2005 (Cth).  In my view there is a scheme between section 11 of that Act and the Family Law Act 1975 (Cth) which is the Commonwealth legislation that deals with children, divorce and parental responsibility.  The term parental responsibility is specifically defined under section 61B:
            “In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Section 61C of the Family Law Act provides:
“(1)     Each of the parents of a child who is not 18 has parental responsibility for the child.
(2)        Subsection (1) has the effect despite any changes in the nature of the relationships of the child’s parents.  It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3)        Subsection (1) has the effect subject to any order of a Court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).”
For some years the Department of Foreign Affairs and Trade has required the birth mother, i.e. the gestational carrier, to sign a form in which she consents to the issuing of an Australian passport for the child.  Even if the birth mother is married, the birth mother’s husband is not required to sign such a form.  The Department took an inconsistent approach with requiring her to fill out this form.  For Australian intended parents:
·         It should be the term of any gestational carrier agreement that there is a positive obligation on the gestational carrier and if necessary her husband and cohabiting partner to consent to parentage or registration in Australia and the issuing of an Australian passport for the child.

The Department of Foreign Affairs and Trade at first did not press this requirement consistently.  It may not seem that the requirement is an onerous one until it is realised that an Australian child’s passport only lasts 5 years and therefore needs to be obtained:
·         At birth;
·         At any change of name of the parents;
·         At 5 years;
·         At 10 years;
·         At 15 years.
The age of majority in Australia is 18. 
Therefore there are ordinarily three (and sometimes four) occasions after the first occasion when the surrogate’s consent is required.  It will only not be required if there is dispensation by the Department or the very expense process of getting an order from the Family Court (or if registration has been obtained – a much cheaper process).
Example 1:
Kyle and Keith were an Australian couple living in Canada.  They underwent surrogacy in British Columbia and became parents by declaration, not by order.  They obtained Australian citizenship for their child.  Subsequently they sought an Australian passport.  The Australian Consul refused to issue an Australian passport without the written consent of the surrogate in the appropriate form.
I was then retained.  I wrote to the Department and pointed out that in light of the decision in Carlton and Bissett [2013] and as Australian law only recognises two parents, when the declaration was made and Kyle and Keith were the only two parents of the child, the surrogate was not a parent, that this was true under Australian law by virtue of the decision in Carlton and Bissett and therefore she did not have parental responsibility under the Family Law Act and therefore did not have parental responsibility under the Australian Passports Act .
The Department’s response was that the surrogate was the natural parent – because she gave birth and therefore her consent was required.
Kyle and Keith then took the matter to the media to lambast the Department.  The Minister for Foreign Affairs then said in essence Department 1, Parents 0 – the consent of the birth mother was required and without that a passport would not issue.  Subsequently the birth mother signed the form and a passport issued for the child. 

Example 2:
Rob and Genevieve are an Australian couple living in the United States. 
They declined to provide the written consent of the carrier to the passport application.  They had become parents by virtue of a US surrogacy order.  After some difference of opinion with the US Consul, the Consulate agreed that the written consent of the carrier was not required because of the existence of the US Court order.

RE GROSVENOR [2017] FamCA 366
On Friday, 26 May 2017, the Family Court of Australia handed down a judgment in which, for the second time, the court registered a US surrogacy order.  My firm acted for the intended parents.
Our clients were an Australian heterosexual couple living in the United States.  A child was conceived and born through surrogacy.  The child was conceived from the husband’s sperm and an egg from an egg donor.  A pre-birth order was made in North Carolina confirming that my clients were the parents.
The significance of the case is that the judge, also Justice Forrest, held that in the circumstances of the case, despite the public policy in Australia against commercial surrogacy, and even though the parties had engaged in what is seen in Australia as commercial surrogacy, the order ought be registered:
“Given that the applicants and their solicitor tell the Court that the child in this case was brought into the world with the assistance of an arrangement regulated by a commercial surrogacy agreement, I am clearly required to more deeply consider that proposition expressed by me [in Re Halvard] only six months ago.  The public policy context within which this consideration is set includes the fact that in Queensland, New South Wales and the Australian Capital Territory, entry into commercial surrogacy arrangements abroad by persons ordinarily resident in those jurisdictions is a criminal offence.  Of course, I have already observed that Mr and Mrs Grosvenor reside in the USA and not one of those jurisdictions.  Nevertheless, they have entered into a commercial surrogacy agreement and they seek the registration of the Court order that gives them the parenting rights over their child in this Court.
Having considered the matter further, particularly having regard to:
·         The unique circumstances of this couple and their inability to biologically parent and carry their own baby;

·         The well-regulated nature of the surrogacy arrangements entered into between the applicants and the surrogate, notwithstanding its commerciality;

·         The judicial oversight to the arrangements given by the Court in the USA, including the procedural fairness offered thereby to the woman who carried the baby for the applicants;

·         The acceptance by the Australian Government of that US jurisdiction as a prescribed jurisdiction for the purposes of the registration of ‘overseas child orders’ made in Courts of that jurisdiction, thereby, I am satisfied, signifying the Australian Government’s satisfaction with the standard of the judicial processes that would have occurred in the making of the order; and

·         The fact that the arrangements entered into, regardless of their nature, brought into the world a child who is the biological child of at least one of the applicants, the legal child of both them, who is being loved and raised as their child, who as an Australian citizen, like her parents, will be coming back to live in Australia in the near future, and who has every right to expect that the legal nature of her relationship with both of her parents is appropriately recognised in this country of hers;

I am satisfied that the commercial nature of the surrogacy agreement alone in this particular case should not determine the exercise of discretion against the applicants.”

The conclusions by his Honour are in line with the approach seen in the European Court of Human Rights, and discussions by the working group at The Hague contemplating a Hague Convention on private international law concerning children, including international surrogacy arrangements- the focus must be on the child, not the other players. Of all the players, without some certainty of process, the child is the most vulnerable one, with his or her legal status- and the legal relationship with his or her parents- uncertain. 

After all, under Article 8 of the International Convention on the Rights of the Child, the child is entitled to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 

Thankfully, by recognising and protecting the child’s legal relationship with his or her parents, the Australian registration of US orders enables the child’s right to an identity to be protected and preserved, consistent with Australia’s international obligations under the Convention.

 

FINALLY

This is a new and controversial area of law.  The Australian House of Representatives’ surrogacy inquiry last year recommenced making it harder for Australian intended parents to undergo surrogacy overseas in any country that had standards less than that of Australia.  The only country that has standards as stringent as those of Australia is New Zealand - so even intended parents who are going to the US or Canada would, if that committee’s recommendations were followed, find the journey considerably more difficult.
It is unlikely in this term of Parliament that there will be any changes to the laws concerning international surrogacy.  It is uncertain in the following term of Parliament whether there might be any change.  There is an old Chinese curse:
            “May you live in interesting times.”
In this field we continue to live in interesting times.


Stephen Page
Harrington Family Lawyers
15 June 2017

http://surrogacyandadoption.blogspot.com
twitter.com/stephenpagelaw


[1] Stephen Page is a partner of Harrington Family Lawyers, Brisbane, Australia.  He was admitted in 1987.  Is first surrogacy case was in 1998.  He is an international representative on the Executive Committee of the ART Committee of the Family Law section, a Fellow of the International Academy of Family Lawyers and AAARTA.  He has spoken and written widely about ART issues, including for the International Bar Association.  Stephen has represented clients in all eight Australian States and territories and at last count 25 countries overseas.
[2] As it is now known.
[3] Ellison and Karnchanit [2012] FamCA602.
[4] The Baby Gammy case – Farnell and Chanbua [2016] FCWA 17
[5] [2010] FCAFC119 – although the Full Court was clear that surrogacy was not included in the discussion.
[6] Department of Immigration and Border Protection, Citizenship Policy (2016), pp214-215.
[7] E.g. Johnson and Chompunut [2011] FamCA505; Hubert and Juntasa [2011] FamCA505; Denis and Pradchaphet [2011] FamCA123 and Dudley and Chedi [2011] FamCA502.
[8] Ellison and Karnchanit [2012] FamCA602
[9] Mason and Mason [2013] FamCA424
[10] Green-Wilson and Bishop [2014] FamCA1031
[11] Baby Gammy case – Farnell and Chanbua [2016] FCWA17
[12] Blake & Anor [2013] FCWA1 – although doubtful in light of the decision in Farnell and Chanbua
[13] Bernieres and Dhopal [2015] FamCA736. The decision has been appealed. The appellate decision has been reserved.
[14] Carlton and Bissett [2013] FamCA143
[15] Re Mark: An Application relating to Parental Responsibilities [2003] FamCA822
[16] , and the Supreme Court of any State or territory in the Family Court of Western Australia
[17] [14]
[18] [15]
[19] [18]
[20] [35]
[21] [37]
[22] [40]
[23] Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical Practice and Research (2017)
[24] Currently the Deputy Prime Minister, Julie Bishop
[25] Section 11(1)(a)